Three Words to Remember
Reliable – We’re really talking about hearsay and the exceptions
Burdens and presumptions
All of evidence revolves are those three concepts
Be continually thinking through the three concepts, in order. Ask, is it relevant, is it reliable, is it prohibited by social policy
This course is different – it’s a seat of your pants class
Must be prepared to think rapidly and logically
The Rules provide the legal justification for why you want to jump and shout “I object” because something just seems unfair.
This is NOT a synthesis course. You’ve got to work backward. Evidence is a conclusion, then you have to work back to the premises behind the Evidence.
Common law – lots of chaos when common law was the basis for evidence law
Wigmore Code of Evidence (1909) – too complicated and not practical. Just showed that it was possible to have a code.
Morgan Model Code of Evidence – Harvard professor. Not practical, too forward looking
Uniform Rules of Evidence
1953 National Conference of Commissioners on Uniform State Laws
1974 Adopted Rules largely tracking the Federal Rules
(State) Evidence Codes – California (1965) is a good example
Federal Rules of Evidence
Advisory Committee to Supreme Court to Congress
Voted on by Congress (right in the midst of Watergate)
Deleted the privileges section
Privileges were left to common law development
Just about every state at the very least models its evidentiary code on the Federal Rules.
Codes are a unifying factor, but it can stagnate without common law development as well. (And common law can be chaotic without codes to unify).
How Evidence is Admitted or Excluded
Getting Evidence In
Foundation – connecting the evidence to the litigation
Offer of Proof
Word of the lawyer
Call the witness out of the hearing of the jury
Types of Evidence
Real Evidence – tangible things involved in the events in litigation
Demonstrative Evidence – makes graphic the point to be proven
Writings (which have their own special rules)
Keeping Evidence Out
Objection or Motion to Strike
Save objections for those situations where it’s really necessary (if it’s hearsay and the next witness is going to say the same thing and it wouldn’t be hearsay, no reason to object).
Puts judge on notice that a ruling is necessary
Allows offering party to cure the problem
Laying further foundation
ask question of another witness
Remember – this is discretionary! The judge can choose not to allow evidence that is technically admissible.
Error + Prejudice = Reversal
Prejudice must be to substantial rights of a party
Harmless Error – no substantial rights implicated
Waiver – failure to preserve error in a timely manner
Plain Error – standard of review
Constitutional Error – can never be waived (very rare)
Remember – can’t usually appeal an evidentiary ruling interlocutorily
Because a judge has wide discretion in admitting evidence, most appeals of evidentiary rulings must meet the difficult abuse of discretion standard of review.
Cross-Examination à FRE 611(b) – Scope of Cross
“Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.”
Limited to the subject matter of direct examination (hierarchy)
“Matters affecting credibility of the witness”
“Permit Inquiry into additional matters”
Problem 1-A – “The Buick ran the red light.” (p. 30-31)
Rules Jurisdiction – follow the FRE or an analog (otherwise it’s common law)
Area of law is torts
Case in chief – important because it establishes scope of questioning
Dealing with Felsen’s Cross
We’re dealing with the issue of negligence and whether Felsen ran the red light (thus establishing negligence).
Appropriate subjects for cross-examination (hierarchy)
Matters already raised on direct
Matters affecting the witness’ credibility
Anything else that the judge decides to allow (discretionary)
Dreeves dating Barton – matter affecting Dreeves credibility so it’s OK. Credibility is always relevant on cross, so always allowed.
Dreeves saw that Barton was turned around looking backward – majority view is that this question would not be allowed. If Feldsen wants to establish Barton’s negligence he should do it in his case in chief.
Dreeves knows that Barton had just had 3 glasses of wine at lunch. – Not allowed. This question is irrelevant to the scope of direct. Feldsen needs to ask this question when it’s “his turn”. It’s not about the credibility of this witness and really not even part of the transaction described.
Judicial Notice – FRE 201
(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When discretionary. A court may take judicial notice, whether requested or not.
(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.
(e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.
(g) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
Note: Judicial Notice is NOT evidence. It’s a way of getting information in without having to prove anything. (Stipulation is the other way to do this). We have these so that we don’t have to waste time and energy proving things that are not in dispute or not disputable. We need these because it’s got to get in the record.
Two kinds of facts
Legislative facts – no due process required
Adjudicative facts – probably requires due process standards to apply
Opportunity to be heard
Not subject to reasonable dispute
Verifiable by unimpeachable sources
Supplied with “the necessary information”
Discretionary – no request necessary
Requested by a party
Requesting party supplies the necessary information
Problem 11-A – Dry Pavement (p. 839)
Paulsen sues Davis for auto accident
Paulsen requests judicial notice
No precipitation that day (according to weather report)
Pavement at the intersection was dry
Weather report says there was no rain that day
Hearsay is not relevant to judicial notice.
Judicial notice occurs outside of the rules of evidence. The only question is whether the source of the information is indisputably verifiable. See Rule 104 – Preliminary Determinations.
Hearsay is the wrong objection (though some objection might very well be appropriate). The objection ought to be clarified.
Pavement was dry – clearly no grounds for judicial notice. You’ve got to prove this one. It’s not a “generally known fact” or “verifiable by unimpeachable sources” (the jury can choose to disbelieve 40 bishops).
Review of Rule 201
Rule only covers adjudicative facts (201-a)
Kinds of facts (201-b) – Not subject to reasonable dispute
Verifiable by an unimpeachable source
When discretionary? – whether requested or not
Requested by a par
r changed her position and also never mentioned the conversation to any other juror.
Therefore, the error did not result in any change in the deliberations of the jury.
The judge’s mistake
He talked on the record
This is why judges rarely indicate WHY a ruling has been made.
United States v. Jones
Prosecution never proved that SWBell was a “common carrier”, which was an element of the offense.
Prosecution also never asked for judicial notice of the fact that SWBell was a common carrier.
On appeal, Prosecution attempted to employ FRE 201(f) (OK to take judicial notice at “any time in the proceeding” – even on appeal)
BUT, the jury in a criminal case may choose to disregard judicially noticed fact, so you cannot reverse an acquittal on the presumption that the jury would choose to accept the judicially noticed fact.
Problem 11-H: “Okay Maurie” (Evaluative Facts)
Prosecution for extortion
Note written by Maurie introduced into evidence
Prosecution asks judicial notice be taken that the language of the note, in the argot of the underworld, constituted an implicit death threat.
Can judicial notice be taken?
This is an EVALUATIVE fact, not an adjudicative fact, because it requires an assumption.
If it’s NOT ADJUDICATIVE, then you can’t take judicial notice of it.
Prosecutor is trying to turn an inference (which is NOT evidence) into evidence.
Realize that the jury may be allowed to consider the inference, but not as a judicially noticed fact.
Houser v. State
Houser challenged 21-year-old drinking age.
Wants a declaratory judgement reverting drinking age to 18, because there’s no rational basis to distinguish “adult” for alcohol as opposed to “adult” for every other purpose.
Houser submitted expert affidavits that there is no scientific support for the increased drinking age. State countered with it’s own scientific evidence.
The trial court says that it took judicial notice of the studies submitted by the State.
This is probably not really judicial notice. This is just a matter of the court accepting evidence as probative of a question of law that is the responsibility of the judge to evaluate and not the jury.
REMEMBER AGAIN – Judicial notice applies ONLY to ADJUDICATIVE FACTS.
(1975): Legislative Facts (1978) [Judicial Notice in Criminal Cases] (1975) [Judge injecting personal knowledge](a) Scope of rule. – This rule governs only judicial notice of adjudicative facts.
Burden of Production – WHO is responsible for proving. Allocation. Usually falls on the moving party.
Burden of Persuasion – WHAT IS THE STANDARD. Weight.
Civil – Preponderance = anything over 50% (just not equal)
Civil (special circumstance) – Clear and Convincing. More than a preponderance but less than BARD.
Criminal – Beyond a reasonable doubt
Inference vs. Presumption
Inference is deduced by reasoning and logic.
Presumptions require a particular conclusion if certain facts are established and absent “counterproof”.
If one establishes a basic fact, a prima facie case is made.
If there is no counter-proof
The presumed fact is established.
If the presumed fact is established, the issue is foreclosed.
Zones of Evidence